The advent of technology, more specifically the initiation of sharing personal information via platforms such as the internet, has mandated the development of legislation which protects vital personal information. We all find the idea of standing in a long queue to be a daunting sight. Technology has allowed us to circumvent the tiring month-end queues by providing electronic payment methods and online shopping platforms. As we know, with reward there is often an associated risk. The result of opting for technology as a means of tending to one’s affairs is that your personal information might be at risk if a service provider discloses such personal information to an unknown third party.
The Constitution of the Republic of South (herein after the Constitution) entitles all individuals to the right to privacy. This right is entrenched in Section 14 thereof. The right to privacy includes a right to protection against the unlawful collection, retention, dissemination and use of personal information .
The Protection of Personal Information Act (herein after the Act) was signed into law by the former President Zuma on 19 November and published in the Government Gazette Notice 37067 on 26 November 2013. The main purpose of the Act is to promote the protection of personal information by public and private institutions.
From the outset, it would be most advantageous to first define what is meant by “Personal Information”. According to the Act, personal information means any information relating to a living, identifiable and natural person. Basically, it includes all individuals currently in the Republic of South Africa.
It is important to mention that legal entities refer to companies or other legally recognised entities and that legal entities are attributed the same protection which natural persons have under the Act.
The individual and the Protection of Personal Information Act
Individuals are often bombarded by tele-marketers who all preach to have the bargain of the century for sale. A major change introduced by the Act is that all parties who wish to directly market their goods and/or services on consumers may only do so once such parties have obtained the consent of the consumer in the prescribed manner and form. This basically provides consumers with an “opt-in” function and essentially provides a consumer with a discretion whether or not to participate in direct-marketing. The safeguard contained in Chapter 7 is that the processing of personal information for purposes of direct-marketing is strictly prohibited unless a consumer has volunteered for the “opt-in” function. Thus, rest assured that tele-marketers will no longer have access to your personal information and lambast you with a variety of goods and services which you in all likelihood do not need.
Every right, such as the right to privacy, comes with a corresponding responsibility and in relation to the right to protection of personal information, the responsibility is to preserve and uphold the protection of personal information of all entities, whether natural or legal.
Basically, the individual has the right to protect his/her personal information. However it is the individual’s responsibility to not divulge personal information. It is suffice to state that in order for an individual to fully utilise the ambit of protection created by the Act, careful consideration should be applied to not wilfully or negligently divulge any of your own personal information. The fore mentioned would operate against the objectives of the Act and accordingly you will not be eligible for the protective framework created by the Act.
Information as mentioned previously includes:
- information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person
- information relating to the education or the medical, financial, criminal or employment history of the person
- any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the person
- the biometric information of the person (biometric is just a fancy term used for finger-prints).
Porcessing of Personal Information
The Act is manifested on giving effect to, amongst other things, the right to privacy as stated in our Constitution. The Act also strives to create a regulatory framework in terms of which we, as a country, endeavour to incorporate the international standards relating to the protection of personal information into our domestic law. In order to effectively regulate how personal information is processed, the Act imposes certain requirements which must be adhered to at all times when processing personal information. Any processing of personal information which contradicts the fore mentioned requirements shall be construed as illegal and consequently, a possible sanction/punishment may be imposed.
In essence, the Act is premised in promoting a high-standard of accountability and responsibility for natural persons and legal entities alike. These natural persons and legal entities are thus obligated to not misuse or disclose any person’s personal information in any way.
In conclusion, all individuals and businesses are encouraged to educate themselves and their staff on the various provisions of the Act and the applicability thereof. In the age of information, we must accept that technological advancement is inevitable. However, we must be weary of continuing to advance without any sufficient safeguards being establish. The Act provides us with these very crucial safeguards. It is our responsibility as citizens to educate ourselves and utilize the laws of our beautiful country in such a manner that gives effect to our Constitutionally recognised rights.
Article by Benedict Asia, a Candidate Attorney at Faure & Faure Inc.
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